IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1117
[2020] NZHC 429
BETWEEN EAST DEVELOPMENT LIMITED
Plaintiff/Applicant
AND
ALV DEVELOPMENT LIMITED
Defendant/First Respondent
GERA PROPERTY LIMITED
Second Respondent (Third Party)FREDERIC CHEE KIONG LEE
Third Respondent (Third Party)GRACE KAKE NYUK WONG
Fourth Respondent (Third Party)
Hearing: 28 February 2020 Appearances:
J G Ussher for the Plaintiff/Applicant M R Taylor for the Respondents
Judgment:
6 March 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 6 March 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
EAST DEVELOPMENT LIMITED v ALV DEVELOPMENT LIMITED [2020] NZHC 423 [6 March 2020]
[1] The plaintiff, East Development Limited (“EDL”), has sought to sustain freezing orders against the first and second respondents, ALV Developments Limited (“ALV”) and Gera Property Limited (“Gera”), and also seeks ancillary orders, namely provision of information, from all four respondents.
[2] The orders sought by EDL are opposed by the respondents on the basis that they are neither necessary or appropriate.
Background
[3] There is no dispute that in April/May 2017 ALV failed to complete a purchase of a property owned by EDL at 20 Waterloo Street, Howick. An initial summary judgment application seeking specific performance was however withdrawn by EDL when it became clear that EDL had in fact already cancelled the agreement. EDL subsequently sold the property to a third party and has sought damages from ALV for the loss suffered. A subsequent summary judgment application was however not given leave to proceed, the Judge being unconvinced that EDL “could satisfy me on a summary judgment application that it has acted reasonably in mitigating its losses and effecting a bona fide resale, such that ALV has no defence to its cause of action.”1
[4] As a result, EDL’s claims have proceeded by way of ordinary proceedings and are set to be heard in August 2020.
[5] The present freezing orders were granted by Downs J on 23 October 2019 and subsequently extended to the present hearing. Downs J declined the application for ancillary orders which continue to be sought by EDL.
[6] The freezing orders were prompted when EDL became aware that ALV was selling a property it owned at 10 Michael Richard Place, Tamaki Heights (“Michael Richard Place”), which was in fact transferred from ALV to Gera on 8 October 2019. In applying for the freezing orders EDL sought to prevent ALV from dissipating the sale proceeds and Gera from dealing further with Michael Richard Place, while at the
1 East Development Ltd v ALV Developments Ltd [2018] NZHC 3456 at [42].
same time obtaining from the respondents an explanation for the transaction via the imposition of the ancillary orders.
[7] Since the orders were obtained the third respondent Frederic Lee has filed an affidavit in which the following asserted matters are largely supported by exhibits:
(a)On 11 May 2017, ALV became the registered proprietor of a…
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- East Development Limited v ALV Development Limited [2020] NZHC 429
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- [2020] NZHC 429
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